Hazardous Waste Treatment Council v. U.S. E.P.A., s. 86-1657

• Decision Date: 15 September 1989
• Docket Number: Nos. 86-1657,87-1016 and 87-1057,86-1677,s. 86-1657
• Citation: 886 F.2d 355
• Parties: , 280 U.S.App.D.C. 338, 58 USLW 2227, 19 Envtl. L. Rep. 21,398 HAZARDOUS WASTE TREATMENT COUNCIL, Petitioner, v. U.S. ENVIRONMENTAL PROTECTION AGENCY, Respondent, Edison Electric Institute, et al., Chemical Manufacturers Association, Intervenors.
• Court: U.S. Court of Appeals — District of Columbia Circuit

Page 355

886 F.2d 355

30 ERC 1233, 280 U.S.App.D.C. 338, 58

USLW 2227,

19 Envtl. L. Rep. 21,398

HAZARDOUS WASTE TREATMENT COUNCIL, Petitioner, v. U.S. ENVIRONMENTAL PROTECTION AGENCY, Respondent Edison Electric Institute, et al., Chemical Manufacturers Association, Intervenors.

Nos. 86-1657, 86-1677, 87-1016 and 87-1057.

United States Court of Appeals District of Columbia Circuit.

Argued March 22, 1989.

Decided Sept. 15, 1989.

Robert Timothy McCrum, with whom Jane L. Bloom, New York City, David R. Case, Donald S. Strait, and Ridgeway M. Hall, Jr., were on the brief, for petitioners Hazardous Waste Treatment Council and Natural Resources Defense Council.

John T. Smith, II, with whom David F. Zoll and Kenneth M. Kastner, Washington, D.C., were on the brief, for Chemical Mfrs. Ass'n, petitioner in No. 87-1016 and intervenor in Nos. 86-1657 and 86-1677.

Steven E. Silverman, Atty., E.P.A., with whom Roger J. Marzulla, Asst. Atty. Gen., Lisa F. Ryan and Mary Elizabeth Ward, Attys., Dept. of Justice, Washington, D.C., and Lawrence Jensen, Gen. Counsel, E.P.A., were on the brief, for respondent.

Angus Macbeth was on the brief for petitioner Chemical Waste Management, Inc., in No. 87-1459.

William R. Weissman and Douglas H. Green (for Edison Electric Institute, et al.) and G. William Frick and Thomas S. Llewellyn, Washington, D.C., (for American Petroleum Institute) were on the joint brief for intervenors.

Jacqueline M. Warren entered an appearance for petitioner Natural Resources Defense Council, Inc., in No. 86-1677.

Robert F. Van Voorhees and Mark B. Halverson, Washington, D.C., entered appearances for petitioner Chemetco, Inc., in No. 87-1057.

James K. Jackson, Washington, D.C., and Ralph J. Colleli, Jr., entered appearances for intervenor American Petroleum Institute in No. 86-1677. Arnold S. Block, Philadelphia, Pa., entered an appearance for intervenor American Petroleum Institute in Nos. 87-1016 and 87-1459.

Before WALD, Chief Judge, SILBERMAN and D.H. GINSBURG, Circuit Judges.

Opinion PER CURIAM.

Opinion concurring in part and concurring in the result filed by Circuit Judge SILBERMAN.

PER CURIAM:

In 1984, Congress amended the Resource Conservation and Recovery Act ("RCRA"), 42 U.S.C. Sec. 6921-6991 (1982 & Supp. IV 1986), to prohibit land disposal of certain hazardous solvents and wastes containing dioxins except in narrow circumstances to be defined by Environmental Protection Agency ("EPA") regulations. See Hazardous and Solid Waste Amendments, Sec. 201(a), 42 U.S.C. Sec. 6924(e) (Supp. IV 1986). In these consolidated cases, petitioners seek review of EPA's final "solvents and dioxins" rule published pursuant to Congress' 1984 mandate. We conclude that the rule under review is consistent with RCRA, but remand one aspect of the rulemaking to the agency for further explanation.

I.

A. Statutory Scheme.

The Hazardous and Solid Waste Amendments of 1984 ("HSWA"), Pub.L. No. 98-616, 98 Stat. 3221 (1984), inter alia, substantially strengthened EPA's control over the land disposal of hazardous wastes regulated under RCRA's "cradle to grave" statutory scheme. In preambular language to the HSWA, Congress, believing that "land disposal facilities were not capable of assuring long-term containment of certain hazardous wastes," expressed the policy that "reliance on land disposal should be minimized or eliminated." 42 U.S.C. Sec. 6901(b)(7). In order to effectuate this policy, HSWA amended section 3004 of RCRA to prohibit land disposal of hazardous waste unless the waste is "pretreated" in a manner that minimizes "short-term and long-term threats to human health and the environment," id. Sec. 6924(m), or unless EPA can determine that the waste is to be disposed of in such a fashion as to ensure that "there will be no migration of hazardous constituents from the disposal [facility]...." Id. Sec. 6924(d)(1), (e)(1), & (g)(5).

As amended, RCRA requires EPA to implement the land disposal prohibition in three phases, addressing the most hazardous "listed" wastes first. See id. Sec. 6924(g). ¹ In accordance with strict statutory deadlines, the Administrator is obligated to specify those methods of land disposal of each listed hazardous waste which "will be protective of human health and the environment." Id. In addition, "[s]imultaneously with the promulgation of regulations ... prohibiting ... land disposal of a particular hazardous waste, the Administrator" is required to

promulgate regulations specifying those levels or methods of treatment, if any, which substantially diminish the toxicity of the waste or substantially reduce the likelihood of migration of hazardous constitutents from the waste so that short-term and long-term threats to human health and the environment are minimized.

Id. Sec. 6924(m).

Respecting two categories of hazardous wastes, including the solvents and dioxins at issue here ² Congress, however, declined to wait for phased EPA implementation of the land disposal prohibition. For these wastes, Congress imposed earlier restrictions, prohibiting land disposal after dates specified in the HSWA except in accordance with pretreatment standards or pursuant to regulations specifying "protective" methods of disposal. Id. Sec. 6924(e)(1). These prohibitions, as applied to the solvents and dioxins listed in the HSWA, were to take effect November 8, 1986. Id.

In order to further RCRA's basic purpose of mandating treatment of hazardous wastes in lieu of land disposal, Congress further provided that storage of wastes falling within the land disposal prohibition would be "prohibited unless such storage is solely for the purpose of the accumulation of such quantities of hazardous waste as are necessary to facilitate proper recovery, treatment or disposal." Id. Sec. 6924(j). Congress believed that permitting storage of large quantities of waste as a means of forestalling required treatment would involve health threats equally serious to those posed by land disposal, and therefore opted in large part for a "treat as you go" regulatory regime.

B. The Rulemaking Under Review.

In January 1986, EPA issued a notice of proposed rule-making announcing its draft implementation of the land disposal prohibition for solvents and dioxins. See 51 Fed.Reg. 1602 (1986) (hereinafter "Proposed Rule"). Approximately ten months later, after receiving extensive public commentary on the draft blueprint, EPA published a final solvents and dioxins rule differing in some respects from its draft approach. See 51 Fed.Reg. 40,572 (1986) (hereinafter "Final Rule"). These differences were especially striking in EPA's implementation of section 3004(j) and section 3004(m) of RCRA, governing the storage prohibition and treatment standards, respectively, for solvents and dioxins. These portions of the rule, together with other discrete portions of the rulemaking faulted by petitioners, are summarized below.

1. Section 3004(m) Treatment Standards.

In the Proposed Rule, EPA announced its tentative support for a treatment regime embodying both risk-based and technology-based standards. The technology-based standards would be founded upon what EPA determined to be the Best Demonstrated Available Technology ("BDAT"); parallel risk-based or "screening" levels were to reflect "the maximum concentration [of a hazardous constituent] below which the Agency believes there is no regulatory concern for the land disposal program and which is protective of human health and the environment." Proposed Rule at 1611. The Proposed Rule provided that these two sets of standards would be melded in the following manner:

First, if BDAT standards were more rigorous than the relevant health-screening levels, the latter would be used to "cap the reductions in toxicity and/or mobility that otherwise would result from the application of BDAT treatment[.]" Id. Thus, "treatment for treatment's sake" would be avoided. Second, if BDAT standards were less rigorous than health-screening levels, BDAT standards would govern and the screening level would be used as "a goal for future changes to the treatment standards as new and more efficient treatment technologies become available." Id. at 1612. Finally, when EPA determined that the use of BDAT would pose a greater risk to human health and the environment than land disposal, or would provide insufficient safeguards against the threats produced by land disposal, the screening level would actually become the 3004(m) treatment standard. Id.

EPA invited public comment on alternative approaches as well. The first alternative identified in the Proposed Rule (and the one ultimately selected by EPA) was based purely on the capabilities of the "best demonstrated available technology." Id. at 1613. Capping treatment levels to avoid treatment for treatment's sake, according to EPA, could be accomplished under this technology-based scheme by "the petition process":

Under this approach, if a prescribed level or method of treatment under section 3004(m) resulted in concentration levels that an owner/operator believed to be overly protective, the owner/operator could petition the Agency to allow the use of an alternative treatment level or method or no treatment at all by demonstrating that less treatment would still meet the petition standard of protecting human health and environment.

Id. at 1613. And the function served by health-screening levels of providing a default standard when the application of BDAT technology would itself pose a threat to human health and the environment could likewise be fulfilled by the petition process: "an owner operator could [ ] petition the Agency ... to allow continued land disposal of the waste upon a demonstration that land disposal of the waste would not result in harm to human health and the environment." Id.

The Agency received comments supporting both approaches, but ultimately settled on the pure-technology alternative. Of particular importance to EPA's decision were the...